Labour mobility in dispute

Ontario reprimanded for ‘unjustified’ exception applied to out-of-province public accountants
By Sarah Dobson
|Canadian HR Reporter|Last Updated: 03/13/2012

Ontario has had its wrist slapped in a dispute concerning labour mobility and provincial certifications.

Since 2009, the provincial government had posted an exception to labour mobility by limiting the right to practise public accounting in Ontario to accountants who met the province’s specified assessment curriculum.

But this move was challenged by Manitoba and, according to an Agreement on Internal Trade (AIT) panel, not justified.

Ontario’s exception was inconsistent with the agreement, not necessary “to achieve a legitimate objective” and impaired or would impair internal trade, said the panel. As a result, the exception should be removed and the province should comply with the AIT by April 15, 2012.

“The panel findings confirm the direction from Canada’s premiers that certified workers from one jurisdiction will have their certifications recognized in another jurisdiction without requiring additional training,” said Peter Bjornson, Manitoba’s entrepreneurship training and trade minister.

Clearly, Ontario had “absolutely no merit,” said Grant Christensen, CEO of CGA Manitoba in Winnipeg. “This was probably a protect-your-turf war and there is absolutely no basis for it, as the report clearly confirms.”

The panel’s ruling confirms mobility rights for all professionals, he said, and hopefully will help break down any remaining barriers.

“This challenge is precedent-setting and I think it will make governments think twice about whether they’re going to put the exceptions in place and, where a challenge is made to those exceptions, fight them,” said Christensen. “Hopefully, they’ll recognize it’s just not a good use of public money.”

Ontario takes a stand

The roots of the dispute began in November 2009 when Ontario issued a Notice of Measure claiming there were “material differences” among the provinces and territories when it came to the competencies and standards established for licensing public accounting.

As a result, the qualifications of individual applicants would be assessed against Ontario’s public accounting certification requirements — despite the AIT stating “any worker certified for an occupation by a regulatory authority of one province or territory shall be recognized as qualified to practise that occupation by all other provinces and territories… without any requirement for additional training, experience, examinations or assessments as part of that certification procedure.”

Unhappy with this turn of events and its impact on certified general accountants (CGAs), Manitoba formally objected to Ontario’s exception in 2010 and Alberta, British Columbia and Saskatchewan joined as interveners.

Consultations between the governments took place but these were unsuccessful and, in July 2011, Manitoba formally requested a dispute resolution panel be established, with Alberta, B.C. and Saskatchewan also participating.

In its defence, the Ministry of the Attorney General for Ontario said some of Ontario’s courses and examinations were different because of a series of international standards adopted by the Public Accountants Council for the Province of Ontario (PACO), which governs certification processes for all public accountants in the province.

“The deficiencies in education and examination found in the national CGA program supported and continue to support a conclusion that CGAs certified to do public accounting outside Ontario risk having an actual material deficiency in skill, area of knowledge or ability,” said the ministry in a submission to the panel.

“Additional measures imposed for public accountant certification are required to achieve the legitimate objective of consumer protection.”

Ontario also said that since the province is the financial markets capital of Canada, accountants must be held to the highest standard to protect consumers.

“The criteria for certification of CGAs in (the other) provinces are not sufficient to be relied on as demonstrating that such CGAs are competent to work at the level required to protect consumers in Ontario.”

Recommendations of panel

But the panel disagreed. In looking at the education pathway, certification processes in the provinces can also involve work experience and training and Ontario made little reference to these other components, said the panel. The AIT also states “mere differences” between the certification requirements are not sufficient to justify the imposition of additional education, training, experience, examination or assessment requirements. And any differences in the education pathway in Ontario did not result in “actual material deficiency in skill, area of knowledge or ability.”

There also weren’t any real differences in the nature of the Ontario market compared to the rest of Canada, said the panel. And Ontario did not provide solid facts to support its claim the Notice of Measure was necessary to protect consumers, said the panel.

“(Ontario’s) claim that a risk exists is mere conjecture. The panel has seen nothing to substantiate any harm or even that a risk exists.”

Ontario, along with all the other governments in Canada, agreed to the terms of the AIT, said James Horsman, chair of the panel based in Medicine Hat, Alta.

“We felt unanimously that they had not carried out their agreement with the other provinces,” he said. “In order to provide one of the exceptions, there has to be clear evidence that in fact those extensions are unnecessary and we didn’t see that in this case.”

At issue is how labour mobility can truly work if the standards are different among the provinces, said Jeffrey Thomas, a partner at Borden Ladner Gervais in Vancouver.

“To put it colloquially, you can’t look under the hood… except for very unusual circumstances and those circumstances weren’t met in this case.”

If somebody is certified to practise an occupation in a province, that certification must be accepted, subject to some exceptions, according to Chapter 7 of the AIT. In this case, Ontario did not meet the terms of the exceptions, he said.

“If there are material differences in education and training, the chapter does allow the second province to impose that requirement, that additional training or education on applicants coming from other provinces, but Ontario wasn’t able to demonstrate that that was the case.”

Ontario’s response

The Ministry of the Attorney General of Ontario was disappointed the panel did not give more weight to the strong evidence about the deficiencies of the qualification processes of CGAs outside Ontario, according to Marya Winter, issues and media relations at the ministry in Toronto.

“We do note, however, that the panel found that Ontario’s standards for public accounting were set in good faith and that it urged the provincial regulatory bodies to work to harmonize the standards nationally.”

Ontario did not appeal the panel’s decision and expects to comply with the ruling, she said. The ministry will also be consulting with PACO and Ontario’s main accounting bodies on the implications of the panel’s decision.

“Ontario supports the goals of the Agreement on Internal Trade and of labour mobility in particular but, in matters of public accounting, Ontario wishes to maintain the consumer protection provided by its recently developed and internationally recognized standards.”

But the panel’s decision finally provides CGAs with full professional equity and respect, said Christensen.

“It finally provides independent and objective verification to the public that CGA standards are second to none. From a public interest perspective, seamless labour mobility across provincial borders is in the public interest and that mobility supports a vibrant, competitive economy, which is the whole reason the AIT agreement is in place and all of the provinces have signed on to it.”    

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